Hate speech and the First Amendment

"If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought - not free thought for those who agree with us, but freedom for the thought that we hate." (Justice Oliver Wendell Holmes)

Hate speech and hate symbols have been the topic of much discussion lately. What exactly is hate speech and how does it affect our First Amendment rights? Hate speech can be defined as speech that offends any group based on race, gender, ethnicity, religion or sexual orientation. Despite widespread public misconception, there is no "hate speech" exception to the First Amendment. "Hate speech" is speech, and as such, is protected under the First Amendment. Protection does not condone the use of hateful speech. As a civil society we should strive to follow the "Golden Rule" whenever possible. Perpetuating misinformation regarding the regulation of speech is misleading and harmful to our democratic republic which relies on an informed and engaged citizenry.

In a desire to embrace diversity, many schools have attempted to regulate "offensive" speech through the adoption of speech, conduct and harassment codes. While intended to make "marginalized" groups feel more welcome, the unintended consequences of these codes is often the violation of individual First Amendment rights. This problem prompted the U.S. Department of Education, Office of Civil Rights to issue a 2003 memo to school administrators emphasizing that the First Amendment is of "central importance to our government, our heritage of freedom, and our way of life," and that "OCR regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment." Although often ignored, the memo remains in effect today.

Recognizing that there is no "hate speech" exception to the First Amendment, the courts have consistently struck down policies that have attempted to limit free expression on the basis of "offensive speech." In Nixon v. Northern Local School District Board of Education, a 2005 case argued in U.S. District Court for the Southern District of Ohio, the court rejected the school's argument that censoring a student's controversial religious T-shirt was permissible to protect the "psychological vulnerability" of students. The court held that "achieving free expression requires an open marketplace in which citizens are susceptible to varied viewpoints.schools are part of the market place, with students entitled to the privileges of citizenry." The court went on to state that high school students do not have a "right" to be sheltered from expression that may offend them, just as they will not have such a right once they leave school.

K.D. ex rel. Dibble v. Fillmore Central School District, a 2005 case from the U.S. District Court for the Western District of New York, involved the banning of a student's pro-life T-shirt after several students complained that they were "upset" by the message on the shirt. The court struck down the ban, stating that "students do not have the right not to be 'upset' when confronted with a viewpoint with which they disagree." The court's opinion in the KD case rejected the notion that censorship of a message is justified simply because a student may find it to be offensive or upsetting.

Most recently, the primacy of the First Amendment was upheld by the United States Supreme Court in the highly publicized 2011 case of Snyder v. Westboro Baptist Church. The case involved Westboro's picketing of the funeral of Matthew Snyder, a U.S. Marine killed in Iraq. During their protest, church members held up signs that read "God Hates the USA/Thank God for 9/11," "Thank God for IEDs," "Semper Fi Fags," and other similar slogans. Writing for the court in an 8-1 decision, Chief Justice Roberts said, "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. ... We cannot react to [Snyder's] pain by punishing the speaker. As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

In upholding the First Amendment, the courts have recognized that in a society that champions individual freedom and the free and open exchange and debate of ideas, there is no place for censorship nor the coercive power of the state. Far better to rely on the disinfectant qualities of sunlight. When presented with hateful and repugnant speech, a free people have recourse to reason, debate, discussion, argument and outrage to discredit such speech. As John Milton, the 17th century English philosopher, argued, "let truth and falsehood grapple ... in a free and open encounter," and truth will triumph in the end.

The freedom of speech guaranteed to all of us under the First Amendment is a precious thing. It is at the core of our civil society and is essential to protecting all of us from the arbitrary abuse of power. We would do well to heed the advice of Patrick Henry and "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel."

Bill Nelligan, Nelligan, who retired from the U.S. Army Reserve as a lieutenant colonel, is a graduate of the U.S. Army Command and General Staff College and holds a master's degree in history from the University of Maryland. He lives and works in Montezuma County.